The Obameter

No signing statements to nullify instructions from Congress

"While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law."

Updates

After ignoring provision about notifying Congress of Guantanamo detainee transfers, this moves to Promise Broken

President Barack Obama's decision to release five Guantanamo Bay Prison detainees in exchange for the Taliban-held soldier Bowe Bergdahl without giving Congress advance notice is stirring criticism about a signing statement Obama made back in December -- and about a promise from his 2007 campaign to limit use of such statements.

Signing statements are appended to bills the president signs. They cite reservations or clarifications about how the president plans to enforce -- or disregard -- certain provisions.

As a candidate, Obama pledged to limit his signing statements to certain circumstances. "While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability," Obama pledged during a 2007 interview with the Boston Globe. "I will not use signing statements to nullify or undermine congressional instructions as enacted into law."

Obama's comments came on the heels of discussion about large numbers of signing statements issued by President George W. Bush. Bush authored more than 150 signing statements throughout his time in office, more than five times the number Obama has issued during his six years in office so far.

The last time we checked on this promise, almost three years ago, we rated it a Compromise, noting some actions by Obama that seemed to comport with the promise and others that didn't. We wondered whether this more recent signing statement was sufficiently contradictory to justify a Promise Broken.

The signing statement that set the stage for the Bergdahl release was attached to the fiscal year 2014 National Defense Authorization Act. It put statutory restrictions on the transfer of Guantanamo detainees, notably a provision that requires the administration to inform appropriate members of Congress at least 30 days before the prisoners are moved.

This became relevant when Obama ordered the release of five Guantanamo detainees in exchange for Bergdahl, who had been held by the Taliban in Afghanistan as a prisoner of war for five years. The five were Abdul Haq Wasiq, Mullah Norullah Noori, Mullah Mohammad Fazl, Mullah Khairullah Khairkhwa, and Mohammad Nabi Omari, and prior to their release, officials at Guantanamo had labeled all five of "high" risk to the United States and were recommended for "continued detention."

Members of Congress were not aware of the trade until after it happened, which, on its face, was a violation of the provision in the 2014 defense law. But Obama had telegraphed the possibility of such an action in his signing statement.

In his signing statement, Obama said plainly that he would disregard the statutory restrictions on the transfer of Guantanamo detainees in certain circumstances:

"Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers....

"In the event that the restrictions on the transfer of Guantanamo detainees in sections 1034 and 1035 operate in a manner that violates constitutional separation of powers principles, my administration will implement them in a manner that avoids the constitutional conflict."

In his campaign promise, Obama was careful not to say that he would never use signing statements. Rather, he said the statements would be justified if they were used to "clarify … ambiguous provisions of statutes" and not justified if they were used to "nullify or undermine congressional instructions as enacted into law."

On the one hand, Obama did cite a "constitutional conflict" between the congressional and executive branches on carrying out foreign policy. This could be used to argue that his signing statement was in line with his promise.

Indeed, the White House made this point when PolitiFact inquired for this article.

In such "unique circumstances," said National Security Council spokeswoman Caitlin Hayden, "delaying the transfer in order to provide the 30-day notice would interfere with the executive's performance of two related functions that the Constitution assigns to the president: protecting the lives of Americans abroad and protecting U.S. soldiers. Because such interference would significantly alter the balance between Congress and the president, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances."

We should note that presidents and members of Congress are constantly challenging the constitutionality of each other's actions. And Bush's signing statements often included claims of a constitutional justification.

Still, his decision not to abide by the 30-day requirement amounts to a quite literal nullification of congressional instructions designed for accountability. The last line in Obama's signing statement could be the clearest contradiction because it doesn't just outline constitutional concerns but declares the administration's intentions not to abide by the policy, said Ian Ostrander, a political science professor at Texas Tech University.

Kermit Roosevelt, a University of Pennsylvania law professor, said that while Obama's statement isn't as aggressive as some of Bush's, it asserts a "similar power to disregard federal law under certain circumstances." And Roosevelt said that is inconsistent with Obama's 2007 pledge.

So while Obama may have played it safer than Bush on signing statements, Roosevelt said, his signing statement on Guantanamo detainees did not live up to this particular campaign promise.

When Obama issued his signing statement warning Congress that he reserved the right to disregard a provision of a law passed through Congress, he did something he said he would not do. We rate this a Promise Broken.

Signing statements still controversial

When we last updated this issue in July 2009, President Barack Obama had issued seven signing statements. That number now stands at 18. In the intervening period, one statement in particular -- his most recent from April 2011 -- made us wonder if it were a possible violation of his campaign pledge.

Before we get into the analysis of President Obama"s recent statement, we should provide some background on the signing statement controversy. Signing statements are memos that presidents sometimes attach to bills when they are signed into law. Traditionally presidents used signing statements to innocuously comment on pieces of legislation. The practice has long historical roots, with some scholars claiming that President James Monroe was the first practitioner.

The current turmoil surrounding signing statements stems from how President George W. Bush used them. Critics, including a bipartisan American Bar Association panel, excoriated President Bush for using signing statements to re-interpret or ignore, rather than veto, portions of laws he did not agree with.

Barack Obama criticized President Bush for signing statements. In a 2007 interview in the Boston Globe, Obama pledged to refrain continuing this practice. Although he did not advocate banning signing statements, Obama said, "I will not use signing statements to nullify or undermine congressional instructions as enacted into law ... No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”

"During the campaign, Obama said he would not stop using the signing statement but would use them in a way that was different from President Bush -- which basically took aim at Bush's signing of the Detainee Treatment Act, where he explicitly made a promise to Congress not to authorize the use of torture and then issued a signing statement that seemingly negated that agreement,” said Christopher Kelley, Professor in the Department of Political Science at Miami University in Ohio.

On March 9, 2009 the White House issued a memorandum from President Obama that outlined his view on signing statements and when he would issue them. "I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities,” read the memorandum.

Last April Obama attached a signing statement to the Fiscal Year 2011 budget bill. The statement, in part, addressed a policy rider in the bill that stripped funding of four presidential "czars." The term "czars” is a sobriquet used to describe special presidential advisers who are often not subject to congressional approval. Former administration official Van Jones, for example, was President Obama"s "green jobs czar.” This prohibition is in response to the large number of czars that President Obama has appointed and the controversy surrounding them. PolitiFact has previously analyzed statements about this issue. Ironically, the four "czar" positions in question either no longer exist or are empty -- climate change, health care, automobiles, and urban affairs.

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President. The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority. The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President's ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President's ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

In other words, President Obama is arguing that he has the constitutional authority to appoint advisers to help him carry out his presidential duties and that it is unconstitutional for Congress to try to inhibit this ability. This rationale, on its face, would seem to line up with his previous memorandum about signing statements.

Nevertheless critics contend that Obama chose to ignore Congress"s decree and violated his previous pledge. White House Press Secretary Jay Carney defended President Obama"s position in response to a reporter"s question on the statement, when he said on April 18, 2011:

"He [President Obama] never said he was opposed entirely to signing statements. I can point you to numerous statements from the campaign where he made clear that every president should retain the right, of course must retain the right, to have signing statements, to raise constitutional concerns and objections with a law passed by Congress that he signed into law. His concern was with what he saw as an abuse of the signing statement by the previous administration. So the positions he took in the signing statements on the budget bill are entirely consistent with that position. You need to retain the right to, as president, to be able to issue those signing statements, but obviously they should not be abused.”

We reached out to two experts on signing statements for their views:

"President Obama used a signing statement to rail against the limitations in the law, but not to say he would not obey it -- nor, as his predecessor almost certainly would have done, did he say he would obey it only to the extent it was compatible with his powers as commander in chief and/or as head of the unitary executive branch,” said Andrew Rudalevige, professor in the Department of Political Science at Dickinson College. "Frankly, the use of title-specific posts in the legislation seems designed to be largely symbolic. Why couldn't an ‘Assistant to the President" advise the President on the same things that the ‘Assistant to the President for Energy and Climate Change" could?”

"I think his objections to the ‘czar" provisions of recent legislation are both consistent to his campaign pledge and his memorandum on the use of the signing statement, and it is clearly consistent with previous presidents -- dating at least to the Reagan administration -- about Congress meddling in executive branch affairs,” said Miami University's Kelley. " In addition, you have to ask what is being violated? There are no persons in any of these positions at present, and probably in most, there never will be.”

It is apparent that President Obama"s most recent signing statement did not involve refusing to obey a congressional mandate so much as it asserted what Obama felt was a constitutionally right guaranteed to the executive branch. This follows the stance outlined in his memo about signing statements as well as the Boston Globe interview. We do not find the controversy surrounding this April 2011 statement persuasive enough to change our stance. That being said, the information collected from the previous update and the conclusion it led to still stands. Therefore we continue to rate this promise as Compromise.

Exercising his power or venturing into congressional turf?

When he was a candidate, Barack Obama used signing statements as a convenient point of contrast with his predecessor. President George W. Bush issued more than 100 such statements, signaling that his administration would not carry out congressionally approved provisions on a range of issues, from barring the use of torture to requirements that the executive branch report certain information to Congress. A bipartisan panel of the American Bar Association decried Bush"s use of signing statements as a "serious threat to the rule of law," saying it ran contrary to the system of presidential vetoes and congressional overrides created by the U.S. Constitution.

We aren't taking a position on whether signing statements are good or bad for the country (or, perhaps, somewhere in between). And it's important to understand that they have long been part of the routine tug-of-war between the executive and legislative branches. But we do intend to gauge whether Obama kept his promise.

The issue rose to some prominence on July 21, 2009, when four senior House Democrats wrote Obama a letter complaining about a signing statement the president issued on June 26, in which he argued that he need not abide by conditions set by lawmakers addressing aid for the World Bank and the International Monetary Fund. The president had contended that the language in the bill unduly hampered his authority to conduct foreign policy.

"During the previous administration, all of us were critical of (Bush's) assertion that he could pick and choose which aspects of congressional statutes he was required to enforce," the Democrats' letter read. "We were therefore chagrined to see you appear to express a similar attitude." The letter was signed by House Appropriations Chairman David Obey, D-Wis., House Financial Services Chairman Barney Frank, D-Mass., well as Rep. Nita Lowey, D-N.Y., who chairs the Appropriations Subcommittee on State and Foreign Operations, and Rep. Gregory Meeks, D-N.Y., who chairs the the Financial Services Subcommittee on International Monetary Policy and Trade.

The sentiment appears to be bipartisan. The House on July 9 approved, by a 429-2 vote, an amendment restating that the administration should pressure the World Bank to tighten standards on labor and the environment and require the Treasury Department to submit a report on World Bank and International Monetary Fund activities. The amendment was proposed by Rep. Mark Kirk, R-Ill.

Before we explore whether Obama has broken his promise, let's look at what he said he'd do, and not do.

The promise comes from a 2007 interview with the
Boston Globe'
s Charlie Savage. Obama said, "While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability. I will not use signing statements to nullify or undermine congressional instructions as enacted into law."

He continued, "The problem with (the Bush) administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the president does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1,100 laws — more than any president in history — is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush administration has gone much further than that."

Obama continued in a similar vein when he issued an official memorandum on March 9 outlining how he would use signing statements.

"I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities," the memo reads, adding later, "I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded."

It"s important to note that Obama makes clear in both his campaign assertion and his official memo that he does not consider signing statements to be problematic in and of themselves. Rather, he argues, their use should be limited in scope and reach, clearly stating that President Bush went overboard.

"The president has also already made it clear that he will ... reserve signing statements for legislation that raises clearly identified constitutional concerns," White House spokesman Ben LaBolt said in a statement after the Democratic letter was released.

Thus, the fact that Obama has so far issued five substantive signing statements during his presidency does not mean he has broken his promise. (A few other presidential signing statements appear to be innocuous. For instance, a statement issued June 24, accompanying a supplemental spending bill, merely expresses thanks for congressional cooperation.)

Here is a rundown of Obama's five substantive signing statements.

We addressed his March 11 signing statement — which accompanied the Omnibus Appropriations Act, a leftover spending bill from the prior year — when we rated this promise Stalled last month. Obama objected to five aspects of the bill, including a whistleblower provision and several items on foreign policy. We concluded that the signing statement "seems to undermine clear congressional instructions," but we rated it Stalled pending further examples of signing statements from the administration.

Another, from March 31, accompanied the president"s signing of the Omnibus Public Land Management Act of 2009. While his statement lauded most aspects of the bill, the president balked at one provision limiting how the Interior secretary can fill some slots on the Erie Canalway National Heritage Corridor Commission.

"Because it would be an impermissible restriction on the appointment power to condition the Secretary's appointments on the recommendations of members of the House, I will construe these provisions to require the Secretary to consider such congressional recommendations, but not to be bound by them in making appointments to the Commission."

This statement, like the others, is about the president asserting his power. He argued that his power to appoint members of this commission (as exercised through the Interior secretary) is his alone, and that the House cannot establish any binding — as opposed to advisory — authority over such an act.

A third signing statement, from May 20, accompanied the signing of the Fraud Enforcement and Recovery Act of 2009. In the statement, the president again praised aspects of the bill he was signing, but he asserted that he reserves the right to prevent an administration official from testifying before the Financial Crisis Commission — which is congressionally appointed but is not an arm of Congress itself — on matters the Obama administration considers privileged.

A fourth, from June 2, accompanied a bill to create a Ronald Reagan Centennial Commission. In the statement, Obama clarifies the role of the commission under the separation of powers doctrine. He invokes comments by Reagan himself on the role that Congress can play in this type of commission.

The last — the June 26 signing statement that irked House Democratic leaders — accompanied a supplemental spending bill. The president wrote that provisions of this bill "would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions. I will not treat these provisions as limiting my ability to engage in foreign diplomacy or negotiations."

By making this assertion, the president was essentially saying that the administration — not Congress — has the right to conduct foreign policy and doesn't want Congress to meddle in negotiations with international financial institutions like the World Bank and the International Monetary Fund.

In rating this promise, we have to judge whether Obama has been consistent with his vow to use the statements "to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law" and to avoid using them "to nullify or undermine congressional instructions as enacted into law."

The least contentious example is the one on the Reagan centennial, since there is no indication of any disagreement between his administration and Congress. The other ones are more challenging for us to rate.

In the case of the the Erie Canal commission, the president said that when choosing its members, he disagreed that they need to be approved by lawmakers. That sounds like a reasonable constitutional interpretation, but some in Congress could see it as "undermin(ing) congressional instructions as enacted into law," and maybe even nullifying them.

In case of the financial commission, the president sought to prevent administration officials from having to provide "any information related to any Commission inquiry," as Congress had written into the law. Here, too, it seems like the president is balking at Congress and seeking to undermine, if not nullify, the instructions that Congress wrote into the law.

Finally, in the IMF case that drew the House Democratic ire, the president refused to be bound by language that mandated his administration to take certain positions as dictated by Congress, or requiring advance consultation with Congress. That also sounds like a bid to undermine or nullify congressional instructions. But as the experts say below, he's also raising reasonable constitutional questions.

It's worth noting that Obama has not used signing statements in the bold and sweeping way that President Bush did. Bush, for instance, said that his role as commander in chief meant that he could ignore the wishes of Congress — expressed in several bills that passed both chambers and were signed by the president — that U.S. troops be kept out of combat against Marxist rebels in Colombia funded by the drug trade.

So after his initial signing statements in his first six months in office, Obama has a mixed record.

Obama "has violated his pledge, on paper," said Andrew Rudalevige, a Dickinson College political scientist who has studied the issue. But, Rudalevige added, Obama "has not used signing statements in the same policy-oriented manner as his predecessor."

Unlike Bush, Obama has not picked his battles on major issues such as the use of torture. Rather, he"s quibbled over the seating requirements for a commission that virtually no one's heard of (and stipulated to an advisory role rather than a binding role for Congress). He's laid down limits on what his subordinates will tell a panel that lacks any binding legislative power. And he's refused to let Congress dictate specific negotiating positions in foreign policy.

Indeed, Obama's statements were "conventional assertions of executive autonomy," rather than his own policy agenda, said John Woolley, a University of California-Santa Barbara political scientist who has studied presidential powers.

Obama's actions are "routine as far as how the signing statement had been used prior to the Bush II administration," added Christopher Kelley, a political scientist at Miami University of Ohio and a specialist in signing statements. "From this standpoint I have seen nothing that Obama has done that is out of the main, nor in violation of his promise."

Woolley agrees. "In terms of the things he objects to about legislation, Obama's statements are not really all that different from those of his predecessors" other than Bush. ... These statements are all precise examples of 'using signing statements to protect a president's constitutional prerogatives' — exactly as he promised."

So for now, we find evidence on both sides. There have been the instances where Obama does seem to be exercising more presidential power than Congress would like and, in at least a couple of cases, crossing the line from his promise. But these are issues of power, over which the legislative and executive branch have long tussled. So for now, we're going to rate this one Compromise. But we'll be watching future signing statements to see if we should move the Obameter one way or the other.

First Obama signing statement questions whistleblower clause

A sharp-eyed reader e-mailed us and asked us to consider adding a promise about signing statements to our Obameter database.

Signing statements are memoranda presidents issue when signing legislation. President George W. Bush used them to indicate when he disagreed with aspects of a new law and explained how he would carry out the law. Bush used signing statements on topics from
torture
to the the qualifications that the
nation's top disaster official
should have.

During the campaign, Barack Obama discussed his philosophy on signing statements with the
Boston Globe
, which won a Pulitzer Prize for investigating the practice. While Obama said he would continue the use of signing statements, he also said he would not use them to "nullify or undermine congressional instructions as enacted into law." He said it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability."

After taking office, President Obama issued a memo outlining the principles he would consider when issuing signing statements. Among other things, he said he would alert Congress to constitutional issues early enough so that legislation could be crafted to avoid a signing statement and that he would strive to find laws constitutional unless he has a "well-founded" reason for believing otherwise.

Two days later, Obama issued a signing statement for the Omnibus Appropriations Act, 2009, a spending bill left over from the previous year. Obama objected to five aspects of the bill, including several that had to do with the execution of foreign policy.

But one of his exceptions drew the ire of Sen. Charles Grassley of Iowa. A clause in the act said that Congress would not pay the salary of any federal worker who "attempts or threatens to prohibit or prevent, any other officer or employee of the federal government from having any direct oral or written communication or contact with any member, committee, or subcommittee of the Congress."

Grassley said the section is intended to protect whistleblowers. "This rider was first included in appropriations bills in 1997 and has been included in appropriations bills since," Grassley said in a statement on the Senate floor. "It is a strong signal to all agencies that efforts to block federal employees from coming to Congress won't be tolerated."

Obama's signing statement said, "I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

Grassley said other presidents had objected to the clause, but Grassley was particularly displeased with Obama's saying that his concerns were with communication that would be "otherwise confidential."

"By failing to define 'confidential,' President Obama has given a blank check to executive branch agencies to block communications with Congress related to an undefined, broad category of information," Grassley said.

In one sense, this seems like a classic argument over the separation of powers. Congress wants people to give it information, while the president wants to control the release of information from its administration.

But the dispute also raises questions about whether Obama has broken his promise. Obama said he would not use signing statements to "nullify or undermine congressional instructions as enacted into law." The "otherwise confidential" language seems like a loophole, and his signing statement seems to undermine clear congressional instructions.

It's still early in Obama's presidency, so we're not quite ready to rate this one Broken. He didn't say he would
never
use a signing statement, he specified that he would not use them to nullify or undermine what Congress wanted. But we view his action on the omnibus bill as contrary to the spirit of his promise and it raises questions about whether he will follow through with his pledge from the campaign. We're going to rate this Stalled for now. We will be watching closely to see what other signing statements Obama issues, and we leave the door open to changing our ruling.